Ms R MacLeod v Represented by:15 Ms L Campbell, Solicitor H&M Hennes & Mauritz UK Limited — 2021

Ms R MacLeod had been employed by H&M Hennes & Mauritz UK Limited since 2013 and became store manager in Perth on 1 July 2019. The case concerned complaints made in August 2020 by two members of the Perth management team about her timekeeping, changes to rotas, breaks, use of the swipe system, and whether she worked beyond or outside her scheduled hours. The respondent investigated and then dismissed her for repeated breaches of the timekeeping policy and breach of policies and procedures, saying trust had been damaged.

The Tribunal accepted that Ms Skinner genuinely believed the claimant was guilty of gross misconduct, but held that belief was not reasonably held. It found that the respondent failed to carry out a reasonable investigation of the claimant's explanations, including her account that she sometimes worked beyond her contracted hours, that TOIL was discussed within the management team, that there were receipts and a store diary which might have assisted, and that CCTV could have been checked. The Tribunal also found that the respondent did not investigate the complaints by speaking to other relevant witnesses or considering why the two complaints appeared at the same time after there had previously been no concern raised.

The Tribunal further held that the disciplinary process was unfair because the real basis for dismissal was not properly put to the claimant and because Ms Skinner should not have chaired the hearing. The Tribunal noted that, under the handbook, responsibility for ensuring the claimant's hours were correct lay with the manager, and that Ms Skinner had previously been the claimant's line manager without taking issue with the hours being worked or the swipe process. The Tribunal concluded that dismissal was not within the band of reasonable responses and the unfair dismissal claim succeeded.

On remedy issues, the Tribunal held that there was no Polkey reduction because the unfairness was not merely procedural, but it did reduce both the basic and compensatory awards by 20% for contributory fault because part of the reason for dismissal was the claimant's failure to follow the register in/out procedure. It declined to reduce the award for failure to appeal under s.124A ERA 1996, and it also rejected the respondent's mitigation argument, finding that the claimant's move into care work and intention to train for nursing was not a failure to take reasonable steps to mitigate loss.